The Meaning of the Law

Back in May, I asked the question “Why do we have governments?” As I said back then, the answer was not rocket science. After disclosures this week that President Bush authorized the National Security Agency to conduct warrantless electronic eavesdropping on American citizens, not just once, but apparently thirty times since 9/11, I have to wonder if President Bush missed some fundamental lectures on government too. Could Mr. Bush accurately answer the question, “Why do we have laws?” I doubt it.

Maybe he would answer something like, “Laws are rules that people must follow, except presidents, particularly when it comes to the nation’s national security.” The disclosure this week by The New York Times of these illegal wiretaps and Bush’s subsequent bizarre rationalization suggests that it will take a new administration to remove this terminal case of cognitive dissonance from the White House.

His “logic” seems to go something like this. Despite this FISA statute that explicitly prohibits eavesdropping on American citizen’s telephone calls without approval from the special secret FISA court, FISA was countermanded by the joint resolution passed by Congress on September 14th, 2001. It gave me carte blanc powers for anything I think might even be remotely related to 9/11.

Of course, the resolution says nothing about authorizing wiretapping against American citizens without a warrant. You would think it would be clear from the title of the resolution, which is “Authorization for the Use of Military Force”. Moreover, it authorized the use of our armed forces “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

Thus far, Jose Padilla is the only United States citizen charged in the United States with helping the Al Qaeda terrorists. (He was finally charged years after he was first detained.) He has had a tough time getting a trial for his alleged crime, because Bush declared him an enemy combatant. Padilla has been languishing in a military brig for three and a half years, stripped of the rights we assume all Americans have, including the right to a fair trial. Even so, this joint resolution sounds like it does authorize the president to send the military against any American who might have colluded with the enemy. Unless these few errant citizens are engaged against our forces in combat, you would think it would be much simpler to send the FBI and charge them with treason.

In this case, we are talking about the National Security Agency. The last I checked the NSA was not part of the military. In addition, it cannot exert any military force. The guards at the front desk at the NSA may have a pair of revolvers, but it is unlikely that we will see brigades of NSA eavesdroppers ever going into battle. Of course, the NSA likely does fine intelligence work, but they simply are not a military force. If you polled members of the 107th Congress, I bet you would be hard pressed to find any member who thought that in passing Joint Resolution 23 they were invalidating part of the FISA law.

QUESTION: Why did you skip the basic safeguards of asking courts for permission for the intercepts?

BUSH: First of all, right after September the 11th, I knew we were fighting a different kind of war. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That’s what the American people want.

There is only one wee problem to his logic. It is this minor thing called the Oath of Office. Bush solemnly swore to:

“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Of course, the U.S. Constitution sets a framework for laws that Congress may pass. To protect the constitution a president must necessarily enforce the laws passed by Congress. In fact, that is the whole point of being president: to faithfully execute our laws. (Commander in Chief is a separate duty which applies only to leading our armed forces.) The president does not make any laws. However, whether he agrees with them or not it is his solemn duty to do his best to uphold our laws. All of them.

However, Bush apparently thinks he can ignore laws when he does not agree with them. That this is wholly inconsistent with his oath of office does not bother him in the least.

Nevertheless, it should bother you. It should bother you a lot. The law may be smart or it may be stupid. Clearly, Bush thought the FISA law was stupid and dated after 9/11. Instead of doing what he should have done, which is to petition the Congress to change the statute, he flagrantly and repeatedly violated the law. Why did he do this? Most likely, because he knew that Congress would not change the law. So he invented the world’s most dubious excuse to circumvent it. It is as if he dropped his pants and mooned both Congress and the American people. You can almost hear him taunting, “I know what must be done and you are too stupid to do it. You are a bunch of morons. So I’ll do it anyhow.”

Consulting with a few members of Congress about his decision does not change the law. It does not make it okay. Even if it did, the information was classified. No one who knew about it could disclose their knowledge of it without breaking the law. That is why some of the few in Congress who did know what was going on, people like Senator Jay Rockefeller and Congresswoman Nancy Pelosi, chose to say nothing. If they had, they would have broken the law. They could have gone to prison. They respected the law, even though in this case they were clearly troubled by Bush’s apparently illegal acts.

Clearly, Bush had no qualms though. Therefore, the American public need to send him a clear message. No one person is above the law, and that includes the President of the United States. We need to bring this out in hearings. Then, if our Congress had any backbone, the House would impeach him and the Senate would remove him from office for flagrantly and repeatedly violating the law of the land.

This is not a partisan issue. This is an issue of law. The law is meaningless unless it is enforced. The citizens of the former Soviet Union had rights. It included:

In accordance with the interests of the people and in order to strengthen and develop the socialist system, citizens of the USSR are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations.

Did they have these rights? Sure, but only if they toed the line of the Communist Party. The reality was that the Soviet Union did not support these rights. Consequently, they became meaningless. By circumventing the FISA law, Bush used the law like toilet paper, and essentially canceled a right to privacy for hundreds of millions of Americans. In addition, he cheapened the rights and liberties of all American citizens.

In reality, he is destroying our way of life. We fought against the British because we wanted a government that represented our interests. Our constitution and laws define our liberties and rules of conduct. They apply equally to everyone.

Yet Bush thinks he is an exception. In reality, Bush is nothing but a bully. Bush is trying to win through intimidation. However, bullies have only as much power as we let them get away with. It is time for citizens to demand that our Congress hold Bush accountable for his law breaking. Let me be clear: your freedom and the freedom of your children depend on it. Otherwise, our future is going to start looking a lot like the Soviet Union’s.